Panic Street Lawyer: Superus vs. Supremus

This was the first paragraph in a Monday morning article I read online at POLITICO.com:

The Super Bowl for Supreme Court watchers kicks off this week as the justices hear three days of oral arguments in what could be the blockbuster case of a generation: whether President Barack Obama’s signature law overhauling the American health care system is constitutional.

Oh Internet, will you never cease to provide me with column material?

My initial reaction to the author equating any Super Bowl to this particular Supreme Court oral argument was one of incredulity. Sure, both events are fond of using Roman numerals (the Super Bowl count is up to XLVI, and Tuesday’s argument concerned interpretation of a specific clause in Article I of the Constitution), and my research revealed the same Latin root for “super” and “supreme.” But, other than ancient connections, I thought the experiences of these current events had nothing in common.

Was I wrong? A brief review of sports experience categories is now in order:

The Fan Experience

Super Bowl fans - Healthcare reform fans (mouseover)

From what I saw on television, demonstrators outside the Supreme Court on both side of the Affordable Care Act debate looked like fans of opposing teams playing in a Super Bowl, complete with costumes, signs and trash talking. However, the DC police did not allow any tailgating – an American football tradition -- this week.

Curiously, the police apparently chose not to enforce the DC no-scalping law. Although the marked-up oral argument admission ticket price did not reach Super Bowl heights, the percentage increase was greater, given that a ticket’s face value was zero.

But, unlike the Super Bowl, once the crowd got inside the Supreme Court -- nothing but silence (except for occasional laughter at acceptable points in the argument).

The Viewer/Listener Experience

Courtroom drawings - Live camera action

For the 2012 Super Bowl, 166.8 million people tuned in for some portion of NBC’s coverage of the game, making it the biggest total TV audience of all time.

Gamblers legally wagered almost $100 million on Super Bowl XLVI on February 5 across Nevada’s 184 legal sports books. There may have also been some illegally Super Bowl betting going on elsewhere in the world …

Hard to believe, sports fans, but some people watch the Super Bowl broadcast for the commercials and/or the halftime entertainment. Since there was no television coverage of this week’s Supreme Court oral argument, there was obviously no TV advertising. And the only “halftime” during oral arguments -- between Wednesday’s sessions on severability and Medicaid -- contained no Court-sanctioned entertainment.

Prior to this week’s oral arguments there were a lot more legal “talking heads” on television and a lot more constitutional law experts quoted in newspapers than usual. That coverage in no way compared to early February’s six and one-half hours of pregame breakdown and daily newsprint used to preview the championship of professional American football. And every Super Bowl has plenty of postgame analysis.

Following this week’s Supreme Court oral arguments, the legal analysts directed rather critical comments towards the performance of one of the attorneys. The analysts were each given the opportunity to play the role of moot court judge at the major league level, and most chose to play it to the hilt. Some of them also tried to make outcome predictions based on the nature of the questioning from the justices. See Intrade, supra.

The Team Experience

The Supreme Court - The New York Giants

For a party in a lawsuit, as with a team in a sporting event, what matters most is winning. A Super Bowl winner is determined by the final score at the end of the game.

The Supreme Court most likely decided the winning party in the legal challenge to 2010 overhaul of the American health care system in conference this past Friday. However, the decision (with written opinions) will not be publicly announced for months.

For most of the next three months, only the justices and 39 law clerks … will be privy to the ruling. And even in an age of Twitter and YouTube, it won't leak. "I think the Supreme Court is the one institution that doesn't leak in modern-day Washington, D.C.," says Steven Engel, a lawyer who served a decade ago as a law clerk to Justice Anthony Kennedy.

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